STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA J. SMITH, )

)

Petitioner, )

)

vs. ) Case No. 02-0401

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 30, 2002, in Ocala, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioners: S. Ray Gill, Esquire

S. Ray Gill, P.A.

613 Southeast Fort King Street Ocala, Florida 34471

For Respondent: Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of Children and Family Services should renew the foster care license of Gloria J. Smith.

PRELIMINARY STATEMENT

By letter dated November 16, 2001, the Department of Children and Family Services (Department) advised Petitioner, Gloria J. Smith, that her home would not be relicensed as a foster home. The letter based this decision on a Florida Abuse Hotline Information System report received by the Department on September 5, 2001, alleging threatened harm. The letter also informed Petitioner that there was a subsequent investigation by the Department which determined that there were indicators of threatened harm based on repeated statements made by a former foster child. Additionally, the letter referenced an open investigation with law enforcement regarding the same allegations. Finally, the letter cites Section 409.175(8)(a) and (b), Florida Statutes, asserting that the Department may deny a license if there is an intentional or negligent act materially affecting the health or safety of children in the home. Based upon the investigation cited in the letter, the Department expressed concern that other foster children may be harmed if placed in Petitioner's home.

Petitioner disputed the allegations of the November 16, 2001, letter and requested an administrative hearing. The Department forwarded the case to the Division of Administrative Hearings on or about February 4, 2002. A formal hearing was scheduled for April 17, 2002. Respondent filed an unopposed

Motion for Continuance which was granted. The hearing was rescheduled for May 30, 2002.

At hearing, Petitioner testified on her own behalf.

Petitioner's Exhibits 2 through 4 were admitted into evidence. Petitioner's Exhibit 1 was rejected. Respondent presented the testimony of one witness, Diana McKenzie. Respondent's Exhibits

1 and 2 were admitted into evidence.1/ Official recognition was taken of Chapter 65C-13, Florida Administrative Code.

The hearing was not transcribed. The parties requested more than 10 days in which to file proposed recommended orders and that request was granted. However, neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Gloria J. Smith, is an elementary school teacher. She previously was employed by the Ocala Police Department as a reserve officer. Petitioner has been a foster parent for approximately three years. According to Diana McKenzie, the Department's Acting Supervisor for relicensing, retention, and facilities, there were no allegations made against Petitioner prior to this incident.

2. J.F. was a foster child of Petitioner's on two separate occasions. The first time, J.F. was placed with Petitioner, and was returned to her mother. The date of J.F.'s first placement

   with Petitioner is unclear from the record. J.F. returned to Petitioner for approximately two years and was returned to her mother again in May of 2001.

3. In October of 2000, Petitioner took J.F. to the Ocala Police Department regarding an allegation of possible abuse that occurred in the past. The record is unclear as to the time sequence when this occurred in relation to when J.F. was placed with Petitioner. In any event, Petitioner's taking J.F. to the Ocala Police Department was related to alleged events that did not occur during the time J.F. was in Petitioner's foster care.

4. In September 2001, Petitioner received a call from the Department informing her that an abuse allegation had been made and that the Department would be out to pick up her foster children. At the time, Petitioner had three foster children including J.F. Petitioner also has three children of her own including her son, J.S., who was approximately 14 years old in September 2001.

5. Despite repeated efforts, she was not able to get information regarding the abuse allegation. No one from the Department came to her home to investigate the abuse allegation. Ocala Police came to her home but Petitioner was not at home at the time the police arrived.

6. Petitioner took her son, J.S., to the Ocala Police Department for reasons she understood to be associated with the abuse allegation. However, she was not present during any interview of J.S. by the Ocala police.

7. No other competent facts were established to support the allegations contained in the November 16, 2001, letter from the Department to Petitioner denying relicensure.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

9. The Department of Children and Family Services is the agency charged with the responsibility of licensing foster homes in the state of Florida. Section 409.175, Florida Statutes.

10. Petitioner challenges the nonrenewal of her foster care license. In accordance with the definition of "license" contained in Section 409.175(2)(f), Florida Statutes, the licensure status previously awarded to Petitioner is not a professional license and does not create a property right.

    As the party asserting the affirmative of an issue before this administrative tribunal, Petitioner has the burden of proof.

    Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981). In this case, Petitioner has

    met her burden to prove entitlement to license renewal, absent any disqualifying event.

11. In denying license renewal, the Department's November 16, 2001, letter to Petitioner relies on authority in Section 409.175(8), Florida Statutes, which reads in pertinent part as follows:

    (8)(a) The Department may deny, suspend, or revoke a license.

    
    

    (b) Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:

    
    

    1. An intentional or negligent act materially affecting the health or safety of children in the home or agency.

    
    

12. In connection with the grounds for denial, Section 39.202(2)(j), Florida Statutes, allows the Division of Administrative Hearings to have access to abuse reports for purposes of any administrative challenge. However, the statute does not provide authority for an Administrative Law Judge to treat such reports as sufficient in themselves to support findings of fact.

13. The evidence presented did not establish that Petitioner has committed an intentional or negligent act materially affecting the health or safety of children or potential children in her home.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order granting Petitioner's license renewal.

DONE AND ENTERED this 24th day of July, 2002, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2002.

ENDNOTE

1/ The Department introduced the above referenced abuse report into evidence as Respondent's Exhibit 1. See Section 120.569(1)(g), Florida Statutes. The alleged child victim did not testify, and the Department's investigator(s) did not testify. The document contains hearsay within hearsay and is not sufficient in itself to support a finding of fact as contemplated by Section 120.57(1)(c), Florida Statutes.

Likewise, Respondent's Exhibit 2 is hearsay and is not sufficient in itself to support a finding of fact as contemplated by Section 120.57(1)(c), Florida Statutes.

COPIES FURNISHED:

Ralph J. McMurphy, Esquire Department of Children

and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

S. Ray Gill, Esquire

S. Ray Gill, P.A.

613 Southeast Fort King Street Ocala, Florida 34471

Paul F. Flounlacker, Jr., Agency Clerk Department of Children

and Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children

and Family Services 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-000401

Orders for Case No: 02-000401